Tejani v Fitzroy Place Residential Ltd & Anor

Strike-out is an exceptional remedy. Under CPR r.3.4(2)(a), the court considers whether the pleaded case discloses a legally recognisable claim or defence, assuming the pleaded facts to be true. Under CPR r.3.4(2)(b), unintelligible pleading may justify strike-out, but the claimant should usually first be given an opportunity to clarify it.

Statements of case should plead concise material facts, not the evidence, arguments or rhetoric by which those facts will be proved. A claimant need not generally plead expert evidence or mitigation evidence. Alleged failure to mitigate is ordinarily for the defendant to plead and prove. Apparent alternative claims or double recovery can be addressed in the defence and at trial, rather than by striking out an otherwise intelligible case.

The claimant brought proceedings concerning an unexplained noise affecting a leasehold apartment. He alleged breaches of the Defective Premises Act 1972, contract and lease covenants, and nuisance. He claimed the purchase price, associated expenditure, improvements, furnishings and lost rental income.

The defendants applied under CPR r.3.4(2)(a) and (b) to strike out the pleaded loss and damage. The parties subsequently agreed amendments, further information and a stay for alternative dispute resolution. The remaining issue was whether the application should be dismissed or adjourned generally, and who should pay its costs.

1. Disposition. The strike-out application was dismissed. The agreed directions did not concede the application or grant the relief sought. The defendants’ proposed remedy for any defective new pleading was a fresh application under CPR r.3.4(2), not an adjournment of the existing application.
2. Strike-out principles. A statement of case may be struck out under CPR r.3.4(2)(a) where it discloses no legally recognised ground or the claim is bound to fail. Under rule 3.4(2)(b), strike-out may be appropriate where pleading is so badly drafted that the defendant cannot identify the case to be met. It remains a remedy of last resort, and the court should ordinarily allow an opportunity to provide a coherent pleading.
3. Pleading facts, not evidence. McPhilemy v Times Newspapers Ltd and Tchenguiz v Grant Thornton UK LLP explain that statements of case identify the issues and plead material facts, not witness or expert evidence, arguments or rhetoric. The claimant was therefore right not to plead the evidence supporting the alleged noise, property value or loss. There is no general requirement to serve expert evidence with a pleading; permission is required under CPR r.35.4, subject to the limited personal-injury provision in Practice Direction 16.
4. Mitigation and alternative loss. The claimant was not required to plead the steps taken to mitigate loss. Any alleged failure to mitigate was for the defendants to plead and prove. The apparent claim for both the property’s value and rental loss suggested possible double recovery, but the defendants could plead that objection and it did not make either formulation liable to strike-out.
5. Costs. The application was described as bad and would have been dismissed on its merits. Nevertheless, following the claimant’s express concession, the defendants were awarded the costs of the application, but not the costs of the hearing.